murphy v. waterfront comm'n of ny harbor, 378 u.s. 52 (1964)
TRANSCRIPT
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8/17/2019 Murphy v. Waterfront Comm'n of NY Harbor, 378 U.S. 52 (1964)
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378 U.S. 52
84 S.Ct. 1594
12 L.Ed.2d 678
William MURPHY and John Moody, Sr., Petitioners,
v.The WATERFRONT COMMISSION OF NEW YORK
HARBOR.
No. 138.
Argued March 5, 1964.
Decided June 15, 1964.
Harold Krieger, New York City, for petitioners.
William P. Sirignano, New York City, for respondent.
Mr. Justice GOLDBERG delivered the opinion of the Court.
1 We have held today that the Fifth Amendment privilege against self-
incrimination must be deemed fully applicable to the States through the
Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489. This case
presents a related issue: whether one jurisdiction within our federal structure
may compel a witness, whom it has immunized from prosecution under its
laws, to give testimony which might then be used to convict him of a crime
against another such jurisdiction.1
2 Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront
Commission of New York Harbor concerning a work stoppage at the Hoboken,
New Jersey, piers. After refusing to respond to certain questions about the
stoppage on the ground that the answers might tend to incriminated them,
petitioners were granted immunity from prosecution under the laws of New
Jersey and New York.2 Notwithstanding this grant of immunity, they still
refused to respond to the questions on the ground that the answers might tend to
incriminate them under federal law, to which the grant of immunity did not purport to extend. Petitioners were thereupon held in civil and criminal
contempt of court. The New Jersey Supreme Court reversed the criminal
contempt conviction on procedural grounds but, relying on this Court's
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I. THE POLICIES OF THE PRIVILEGE.
decisions in Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d
1393; Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408;
and United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210,
affirmed the civil contempt judgments on the merits. The court held that a State
may constitutionally compel a witness to give testimony which might be used in
a federal prosecution against him.3 39 N.J. 436, 452—458, 189 A.2d 36, 46—
49.
3 Since a grant of immunity is valid only if it is coextensive with the scope of the
privilege against self-incrimination, Counselman v. Hitchcock, 142 U.S. 547,
12 S.Ct. 195, 35 L.Ed. 1110, we must now decide the fundamental
constitutional question of whether, absent an immunity provision, one
jurisdiction in our federal structure may compel a witness to give testimony
which might incriminate him under the laws of another jurisdiction. The answer
to this question must depend, of course, on whether such an application of the privilege promotes or defeats its policies and purposes.
4 The privilege against self-incrimination 'registers an important advance in the
development of our liberty—'one of the great l ndmarks in man's struggle to
make himself civilized." Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct.
497, 500, 100 L.Ed. 511.4 It reflects many of our fundamental values and mostnoble aspirations: our unwillingness to subject those suspected of crime to the
cruel trilemma of self-accusation, perjury or contempt; our preference for an
accusatorial rather than an inquisitorial system of criminal justice; our fear that
self-incriminating statements will be elicited by inhumane treatment and
abuses; our sense of fair play which dictates 'a fair state-individual balance by
requiring the government to leave the individual alone until good cause is
shown for disturbing him and by requiring the government in its contest with
the individual to shoulder the entire load,' 8 Wigmore, Evidence (McNaughtonrev., 1961), 317; our respect for the inviolability of the human personality and
of the right of each individual 'to a private enclave where he may lead a private
life,' United States v. Grunewald, 2 Cir., 233 F.2d 556, 581—582 (Frank J.,
dissenting), rev'd 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; our distruct of
self-deprecatory statements; and our realization that the privilege, while
sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.' Quinn
v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 964.
5 Most, if not all, of these policies and purposes are defeated when a witness 'can
be whipsawed into incriminating himself under both state and federal law even
though' the constitutional privilege against self-incrimination is applicable to
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each. Cf. Knapp v. Schweitzer, 357 U.S. 371, 385, 78 S.Ct. 1302, 1310
(dissenting opinion of MR. JUSTICE BLACK). This has become especially
true in our age of 'cooperative federalism,' where the Federal and State
Governments are waging a united front against many types of criminal
activity.5
6 Respondent contends, however, that we should adhere to the 'established rule'that the constitutional privilege against self-incrimination does not protect a
witness in one jurisdiction against being compelled to give testimony which
could be used to convict him in another jurisdiction. This 'rule' has three
decisional facets: United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, held
that the Federal Government could compel a witness to give testimony which
might incriminate him under state law; Knapp v. Schweitzer, 357 U.S. 371, 78
S.Ct. 1302, held that a State could compel a witness to give testimony which
might incriminate him under federal law; and Feldman v. United States, 322U.S. 487, 64 S.Ct. 1082, held that testimony thus compelled by a State could be
introduced into evidence in the federal courts.
7 Our decision today in Malloy v. Hogan, supra, necessitates a reconsideration of
this rule.6 Our review of the pertinent cases in this Court and of their English
antecedents reveals that Murdock did not adequately consider the relevant
authorities and has been significantly weakened by subsequent decisions of this
Court, and, further, that the legal premises underlying Feldman and Knapp havesince been rejected.
8 II. THE EARLY ENGLISH AND AMERICAN CASES.
9 A. The English Cases Before the Adoption of the Constitution.
10 In 1749 the Court of Exchequer decided East India Co. v. Campbell, 1 Ves.Sen.246, 27 Eng.Rep. 1010. The defendant in that case refused to 'discover' certain
information in a proceeding in an English court on the ground that it might
subject him to punishment in the courts of India. The court unanimously held
that the privilege against self-incrimination protected a witness in an English
court from being compelled to give testimony which could be used to convict
him in the courts of another jurisdiction. The court stated the rule to be:
11 'that this court shall not oblige one to discover that, which, if he answers in theaffirmative, will subject him to the punishment of a crime * * * and that he is
punishable appears from the case of Omichund v. Barker, (1 Atk. 21.) as a
jurisdiction is erected in Calcutta for criminal facts: where he may be sent to
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B. The Saline Bank Case.
government and tried, thought not punishable here; like the case of one who
was concerned in a rape in Ireland, and sent over there by the government to be
tried, although the court of B.R. here refused to do it * * * for the government
may send persons to answer for a crime wherever committed, that he may not
involve his country; and to prevent reprisals.' 1 Ves.Sen., at 247, 27 Eng.Rep.,
at 1011.
12 In the following year, this rule was applied in a case involving separate systems
of court and law located within the same geographic area. The defendant in
Brownsword v. Edwards, 2 Ves.sen. 243, 28 Eng.Rep. 157, refused to
'discover, whether she was lawfully married' to a certain individual, on the
ground that if she admitted to the marriage she would be confessing to an act
which, although legal under the common law, would render her 'liable to
prosecution in ecclesiastical court.' The Lord Chancellor said:
13 'This appears a very plain case, in which defendant may protect herself from
making a discovery of her marriage; and I am afraid, if the court should over-
rule such a plea, it would be setting up the oath ex officio; which then the
parliament in the time of Charles I. would in vain have taken away, if the party
might come into this court for it. The general rule is, that no one is bound to
answer so as to subject himself to punishment, whether that punishment arises
by the ecclesiastical law of the land.' 2 Ves.sen., at 244 245, 28 Eng.Rep., at
158.
14
15 It was against this background of English case law that this Court in 1828
decided United States v. Saline Bank of Virginia, 1 Pet. 100, 7 L.Ed. 69. The
Government, seeking to recover certain bank deposits, brought suit in the
District Court against the bank and a number of its stockholders. The
defendants resisted discovery of 'any matters, whereby they may impeach or accuse themselves of any offence or crime, or be liable by the laws of the
commonwealth of Virginia, to penalties and grievous fines * * *.' Id., 1 Pet., at
102. The unanimous opinion of the Court, delivered by Chief Justice Marshall,
reads as follows:
16 'This is a bill in equity for a discovery and relief. The defendants set up a plea
in bar, alleging that the discovery would subject them to penalties under the
statute of Virginia.
17 'The Court below decided in favour of the validity of the plea, and dismissed
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the bill.
18 'It is apparent that in every step of the suit, the facts required to be discovered in
support of this suit would expose the parties to danger. The rule clearly is, that
a party is not bound to make any discovery which would expose him to
penalties, and this case falls within it.
19 'The decree of the Court below is therefore affirmed.' Id., 1 Pet., at 104.
20 This case squarely holds that the privilege against self-incrimination protects a
witness in a federal court from being compelled to give testimony which could
be used against him in a state court.
21 C. Subsequent Development of the English Rule.
22 In 1851, the English Court of Chancery decided King of the Two Sicilies v.
Willcox, 1 Sim.(N.S.) 301, 61 Eng.Rep. 116, a case which this Court in United
States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, erroneously cited as representing
the settled 'English rule' that a witness is not protected 'against disclosing
offenses in violation of the laws of another country.' Id., 284 U.S., at 149, 52
S.Ct., at 65. Defendants in that case resisted discovery of information, which,
they asserted, might subject them to prosecution under the laws of Sicily. Indenying their claim, the Vice Chancellor said:
23 'The rule relied on by the defendants, is one which exists merely by virtue of
our own municipal law, and must, I think, have reference, exclusively, to
matters penal by that law: to matters as to which, if disclosed, the judge would
be able to say, as matter of law, whether it could or could not entail penal
consequences.' 1 Sim. (N.S.), at 329, 61 Eng.Rep., at 128.
24 Two reasons were given in support of this statement: (1) 'The impossibility of
knowing, as matter of law, to what cases the objection, when resting on the
danger of incurring penal consequences in a foreign country, may extend * * *,'
id., at 331, 61 Eng.Rep., at 128; and (2) the fact that 'in such a case, in order to
make the disclosure dangerous to the party who objects, it is essential that he
should first quit the protection of our laws, and wilfully go within the
jurisdiction of the laws he has violated,'7 ibid. 61 Eng.Rep., at 128.
25 Within a few years, the pertinent part of King of the Two Sicilies was
specifically overruled by the Court of Chancery Appeal in United States of
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America v. McRae, L.R., 3 Ch.App. 79 (1867), a case not mentioned by this
Court in United States v. Murdock, supra. In McRae, the United States sued in
an English court for an accounting and payment of moneys allegedly received
by the defendant as agent for the Confederate States during the Civil War. The
defendant refused to answer questions on the ground that to do so would subject
him to penalties under the laws of the United States. The United States argued
that the 'protection from answering applies only where a person might exposehimself to the peril of a penal proceeding in this country (England), and not to
the case where the liability to penalty or forfeiture is incurred by the breach of
the laws of a foreign country (the United States).' L.R., 3 Ch.App., at 83—84.
The United States relied on King of the Two Sicilies v. Willcox, supra. The
Lord Chancellor sustained the claim of privilege and limited King of the Two
Sicilies to its facts. He said:
26 'I quite agree in the general principles stated by Lord Cranworth, and in their application to the particular case before him. * * * (The defendants there) did
not furnish the least information what the foreign law was upon the subject,
though it was necessary for the Judge to know this with certainty before he
could say whether the acts done by the persons who objected to answer had
rendered them amenable to punishment by that law or not. * * * (Moreover,) it
was doubtful whether the Defendants would ever be within the reach of a
prosecution, and their being so depended on their voluntary return to (Sicily).'
L.R., 3 Ch.App., at 84—87.
27 In refusing to follow King of the Two Sicilies beyond its particular facts, the
court said:
28 'But in giving judgment Lord Cranworth went beyond the particular case, and
expressed his opinion that the rule upon which the Defendants relied to protect
them from answering was one which existed merely by virtue of our own
municipal law, and which must have reference exclusively to matters penal by
that law. It was unnecessary to lay down so broad a proposition to support the
judgment which he pronounced * * *. What would have been Lord Cranworth's
opinion upon (the present) state of circumstances it is impossible for me to
conjecture; but it is very different from that which was before his mind in that
case, and I cannot feel that there is any judgment of his which ought to
influence my decision upon the present occasion.' Id., at 85.
29 The court then concluded that under the circumstances it could not 'distinguish
the case in principle from one where a witness is protected from answering any
question which has a tendency to expose him to forfeiture for a breach of our
own municipal law.' Id., at 87. This decision, not King of the Two § cilies,
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III. THE RECENT SUPREME COURT CASES.
represents the settled 'English rule' regarding self-incrimination under foreign
law. See Heriz v. Riera, 11 Sim. 318, 59 Eng.Rep. 896.
30 In 1896, in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 this
Court, for the first time, sustained the constitutionality of a federal immunitystatute. Appellant in that case argued, inter alia, that:
31 'while the witness is granted immunity from prosecution by the Federal
government, he does not obtain such immunity against prosecution in the state
courts.' Id., 161 U.S., at 606, 16 S.Ct., at 650.
32 The Court construed the applicable statute, however, to prevent prosecutions
either in state or federal courts.8
33 Shortly thereafter, the Court decided Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73,
50 L.Ed. 234, in which the state court had held plaintiff in error in contempt for
his refusal to answer certain questions on the ground that they would subject
him to possible incrimination under federal law. In re ecting plaintiff's claim,
this Court said that the Fifth Amendment 'has no application in a proceeding
like this,' and hence 'the sole question in the case' is whether 'the denial of his
claim of right to refuse to answer the questions was in violation of the 14th
Amendment to the Constitution * * *.' Id., 199 U.S., at 380, 26 S.Ct., at 75. The
Court stated that it did 'not believe that in such case there is any real danger of a
Federal prosecution, or that such evidence would be availed of by the
government for such purpose.' Id., 199 U.S., at 382, 26 S.Ct., at 76. Then,
without citing any authority, the Court added the following cryptic dictum: 'We
think the legal immunity is in regard to a prosecution in the same jurisdiction,
and when that is fully given it is enough.' Ibid.
34 That this dictum related solely to the 'legal immunity' under the Due Process
Clause of the Fourteenth Amendment is apparent from the fact that it was
regarded, five weeks later in Ballmann v. Fagin, 200 U.S. 186, 26 S.Ct. 212, 50
L.Ed. 433, as wholly inapplicable to cases decided under the Self-Incrimination
Clause of the Fifth Amendment.9 Ballmann had been held in contempt of a
federal court for refusing to answer certain questions before a federal grand
jury. He claimed that his answers might expose him 'to the criminal law of the
state in which the grand jury was sitting.' Id., 200 U.S., at 195, 26 S.Ct., at 213.
Justice Holmes, writing for a Court which included the author of Jack v.
Kansas, supra, squarely held that '(a)ccording to United States v. Saline Bank, 1
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Pet. 100, 7 L.Ed. 69, he was exonerated from disclosures which would have
exposed him to the penalties of the state law. See Jack v. Kansas (decided this
term), 199 U.S. 372, 50 L.ed. 224, 26 Sup.Ct.Rep. 73.' 200 U.S., at 195, 26
S.Ct., at 213.
35 A few months after Ballmann, the Court decided Hale v. Henkel, 201 U.S. 43,
26 S.Ct. 370, 50 L.Ed. 652. Appellant had been held in contempt of a federalcourt for refusing to answer certain questions and produce certain documents.
His refusal was based in part on the argument that the federal immunity statute
did not protect him from state prosecution. The Government argued, on the
authority of Brown v. Walker, supra, that the statute did protect him from state
prosecution. The Government assumed that it was settled that a valid federal
immunity statute would have to protect against state prosecution. It never
suggested, therefore, that immunity from federal prosecution was all that was
required. Appellant similarly assumed, without argument, that the Constitutionrequired immunity from state conviction as a condition of requiring
incriminating testimony in a federal court. Thus the critical constitutional issue
—whether the Fifth Amendment protects a federal witness from incriminating
himself under state law—was not briefed or argued in Hale v. Henkel. Nor was
its resolution necessary to the decision of the case, for the Court could have
decided the relevant point on the authority of Brown v. Walker, supra, which
had held that a similar federal immunity statute protected against state
prosecution. Nevertheless, the Court went on to say:
36 'The question has been fully considered in England, and the conclusion reached
(by the courts of that country) that the only danger to be considered is one
arising within the same jurisdiction and under the same sovereignty. Queen v.
Boyes, 1 Best & S. 311; King of the Two Sicilies v. Willcox, 7 State Trials
(N.S.), 1049, 1068; State v. March, 1 Jones (N.C.), 526; State v. Thomas, 98
N.C. 599, 4 S.E. 518. * * *
37 'The case of United States v. Saline Bank, 1 Pet. 100, 7 L.ed. 69, is not in
conflict with this. That was a bill for discovery, filed by the United States
against the cashier of the Saline Bank, in the district court of the Virginia
district, who pleaded that the emission of certain unlawful bills took place w
thin the state of Virginia, by the law whereof penalties were inflicted for such
emissions. It was held that defendants were not bound to answer and subject
them(selves) to those penalties. It is sufficient to say that the prosecution was
under a state law which imposed the penalty, and that the Federal court wassimply administering the state law, and no question arose as to a prosecution
under another jurisdiction.' 201 U.S., at 69, 26 S.Ct., at 376.
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38 This dictum, subsequently relied on in United States v. Murdock, supra, was
not well founded.
39 The settled English rule was exactly the opposite of that stated by the Court.
The most recent authoritative announcement of the English rule had been that
made in 1867 in United States of America v. McRae, supra, where the Court of Chancery Appeals held that where there is a real danger of prosecution in a
foreign country, the case could not be distinguished 'in principle from one
where a witness is protected from answering any question which has a tendency
to expose him to forfeiture for a breach of our own municipal law.' Supra, at 63.
The dictum from King of the Two Sicilies cited by the Court in Hale v. Henkel
had been rejected in McRae. Moreover, the two factors relied on by the English
court in King of the Two Sicilies were wholly inapplicable to federal-state
problems in this country. The first—'The impossibility of knowing, as matter of
law, to what cases the (danger of incrimination) may extend * * *,' supra, at 60
—has no force in our country where the federal and state courts take judicial
notice of each other's law. The second—that 'in order to make the disclosure
dangerous to the party who objects, it is essential that he should first quit the
protection of our laws, and wilfully go within the jurisdiction of the laws he has
violated,' supra at 60—61—is equally inapplicable in our country where the
witness is generally within 'the jurisdiction' of the State under whose law he
claims danger of incrimination, and where, if he is not, the State may demand
his extradition. The second case relied on in Hale v. Henkel, supra The Queen
v. Boyes, supra—was irrelevant to the issue there presented. The Queen v.
Boyes did not involve different jurisdictions or systems of law. In merely held
that the danger of prosecution 'must be real and appreciable * * * not a danger
of an imaginary and unsubstantial character * * *.' It in no way suggested that
the danger of prosecution under foreign law could be ignored if it was 'real and
appreciable.'10
40 Thus, the au horities relied on by the Court in Hale v. Henkel provided no
support for the conclusion that under the Fifth Amendment 'the only danger to
be considered is one arising within the same jurisdiction and under the same
sovereignty.' Nor was its attempt to distinguish Chief Justice Marshall's opinion
in United States v. Saline Bank of Virginia, supra, more successful. The Court's
reading of Saline Bank suggests that the state, rather than the federal, privilege
against self-incrimination applies to federal courts when they are administering
state substantive law. The most reasonable reading of that case, however, and
the one which was plainly accepted by Justice Holmes in Ballmann v. Fagin,
supra, is that the privilege against self-incrimination precludes a federal court
from requiring an answer to a question which might incriminate the witness
under state law.11 This reading is especially compelling in light of the English
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antecedents of the Saline Bank case. See East India Co. v. Campbell, discussed,
supra, at 58; and Brownsword v. Edwards, discussed, supra, at 58—59.
41The weakness of the Hale v. Henkel dictum was immediately recognized both
by lower federal courts12 and by this Court itself. In Vajtauer v. Commissioner
of Immigration, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560, decided in 1927 by a
unanimous Court, appellant refused to answer certain questions put to him in adeportation proceeding on the ground that they 'might have tended to
incriminate him under the Illinois Syndicalism Law * * *.' Id., 273 U.S., at 112,
47 S.Ct., at 306. Instead of deciding the issue on the authority of the Hale v.
Henkel dictum, the Court held that the privilege had been waived. The Court
then said:
42 'This conclusion makes it unnecessary for us to consider the extent to which the
Fifth Amendment guarantees immunity from self-incrimination under state
statutes, or whether this case is to be controlled by Hale v. Henkel, 201 U.S. 43,
26 S.Ct. 370, 50 L.Ed. 652; Brown v. Walker, 161 U.S. 591, 608, 16 S.Ct. 644,
40 L.Ed. 819. Compare United States v. Saline Bank, 1 Pet. 100, 7 L.Ed. 69;
Ballmann v. Fagin, 200 U.S. 186, 195, 26 S.Ct. 212, 50 L.Ed. 433.' 273 U.S., at
113, 47 S.Ct., at 306.
43 In a subsequent case, decided in 1933, this Court said that the question—
whether 'one under examination in a federal tribunal could not refuse to answer
on account of probable incrimination under state law'—was 'specifically
reserved in Vajtauer v. Commr. of Immigration,' and was not 'definitely settled'
until 1931. United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226, 78
L.Ed. 381.
44 In 1931, the Court decided United States v. Murdock, 284 U.S. 141, 52 S.Ct.
63, 76 L.Ed. 210, the case principally relied on by respondent here. Appellee
had been indicted for failing to supply certain information to federal revenue
agents. He claimed that his refusal had been justified because it rested on the
fear of federal and state incrimination. The Government argued that the record
supported only a claim of state, not federal, incrimination, and that the Fifth
Amendment does not protect against a claim of state incrimination. Appellee
did not respond to the latter argument, but instead rested his entire case on the
claim that his refusals had in each instance been based on federal as well as
state incrimination. In support of its constitutional argument, the Government
cited the same two English cases erroneously relied on in the Hale v. Henkel
dictum King of the Two Sicilies v. Willcox, supra, which had been overruled,
and The Queen v. Boyes, supra, which was wholly inapposite. An examination
of the briefs and summary of argument indicates that neither the Government
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nor the appellee informed the Court that King of the Two Sicilies had been
overruled by United States of America v. McRae, supra.13
45This Court decided that appellee's refusal to answer rested solely on a fear of
state prosecution, and then concluded, in one brief paragraph, that such a fear
did not justify a refusal to answer questions put by federal officers.
46 The Court gave three reasons for this conclusion. The first was that:
47 'Investigations for federal purposes may not be prevented by matters depending
upon state law. Constitution, art. 6, cl. 2.' 284 U.S., at 149, 52 S.Ct., at 64.
48 This argument, however, begs the critical question. No one would suggest that
state law could prevent a proper federal investigation; the Court had alreadyheld that the Federal Government could, under the Supremacy Clause, grant
immunity from state prosecution, and that, accordingly, state law could not
prevent a proper federal investigation. The critical issue was whether the
Federal Government, without granting immunity from state prosecution, could
compel testimony which would incriminate under state law. The Court's first
'reason' was not responsive to this issue.
49 The second reason given by the Court was that:
50 'The English rule of evidence against compulsory self-incrimination, on which
historically that contained in the Fifth Amendment rests, does not protect
witnesses against disclosing offenses in violation of the laws of another
country. King of the Two Sicilies v. Willcox, 7 St.Tr.(N.S.) 1050, 1068; Queen
v. Boyes, 1 B. & S. 311, 330.' 284 U.S., at 149, 52 S.Ct., at 64.
51 As has been demonstrated, the cases cited were in one instance overruled and in
the other inapposite, and the English rule was the opposite from that stated in
this Court's opinion: The rule did 'protect witnesses against disclosing offenses
in violation of the laws of another country.' United States of America v. McRae,
supra.
52 The third reason given by the Court in Murdock was that:
53 'This court has held that immunity against state prosecution is not essential to
the validity of federal statutes declaring that a witness shall not be excused from
giving evidence on the ground that it will incriminate him, and also that the
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lack of state power to give witnesses protection against federal prosecution does
not defeat a state immunity statute. The princip e established is that full and
complete immunity against prosecution by the government compelling the
witness to answer is equivalent to the protection furnished by the rule against
compulsory self-incrimination. Counselman v. Hitchcock, 142 U.S. 547, 12
S.Ct. 195, 35 L.Ed. 1110; Brown v. Walker, 161 U.S. 591, 606, 16 S.Ct. 644,
40 L.Ed. 819; Jack v. Kansas, 199 U.S. 372, 381, 26 S.Ct. 73, 50 L.Ed. 234.Hale v. Henkel, 201 U.S. 43, 68, 26 S.Ct. 370, 50 L.Ed. 652.'
54 This argument—that the rule in question had already been 'established' by the
past decisions of the Court—is not accurate. The first case cited by the Court—
Counselman v. Hitchcock—said nothing about the problem of incrimination
under the law of another sovereign. The second case—Brown v. Walker—
merely held that the federal immunity statute there involved did protect against
state prosecution. The third case—Jack v. Kansas—held that the Due ProcessClause of the Fourteenth Amendment did not prevent a State from compelling
an answer to a question which presented no 'real danger of a Federal
prosecution.' 199 U.S., at 382, 26 S.Ct., at 76. The final case—Hale v. Henkel
—contained dictum in support of the rule announced which was without real
authority and which had been questioned by a unanimous Court in Vajtauer v.
Commissioner of Immigration, supra. Moreover, the Court subsequently said,
in no uncertain terms, that the rule announced in Murdock had not been
previously 'established' by the decisions of the Court. When Murdock appealedhis subsequent conviction on the ground inter alia, that an instruction on
willfulness should have been given, the Court affirmed the Court of Appeals'
reversal of his conviction and said that:
55 'Not until this court pronounced judgment in United States v. Murdock, 284
U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, had it been definitely settled that one under
examination in a federal tribunal could not refuse to answer on account of
probable incrimination under state law. The question was involved but notdecided in Ballmann v. Fagin, 200 U.S. 186, 195, 26 S.Ct. 212, 51 L.Ed. 433,
and specifically reserved in Vajtauer v. Commr. of Immigration, 273 U.S. 103,
113, 47 S.Ct. 302, 71 L.Ed. 560.' United States v. Murdock, 290 U.S. 389, 396,
54 S.Ct. 223, 226.
56 Thus, neither the reasoning nor the authority relied on by the Court in United
States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, supports its conclusion that the
Fifth Amendment permits the Federal Government to compel answers toquestions which might incriminate under state law.
57 In 1944 the Court, in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082,
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was confronted with the situation where evidence compelled by a State under a
grant of state immunity was 'availed of by the (Federal) Government' and
introduced in a federal prosecution. Jack v. Kansas, 199 U.S., at 382, 26 S.Ct.,
at 76. This was the situation which the Court had earlier said it did 'not believe'
would occur. Ibid. Nevertheless, the Court, in a 4-to-3 decision, upheld this
practice, but did so on the authority of a principle which is no longer accepted
by this Court. The Feldman reasoning was essentially as follows:
58 '(T)he Fourth and Fifth Amendments intertwined as they are, (express)
supplementing phases of the same constitutional purpose * * *.' 322 U.S. 489—
490, 64 S.Ct., at 1083.
59 '(O)ne of the settled principles of our Constitution has been that these
Amendments protect only against invasion of civil liberties by the (Federal)
Government whose conduct they alone limit.' Id., 322 U.S., at 490, 64 S.Ct., at
1083.
60 'And so while evidence secured through unreasonable search and seizure by
federal officials is inadmissible in a federal prosecution, Weeks v. United
States, supra (232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652); * * * incriminating
documents so secured by state officials without participation by federal officials
but turned over for their use are admissible in a federal prosecution. Burdeau v.
McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048.' 322 U.S., at 492, 64
S.Ct., at 1084.
61 The Court concluded, therefore, by analogy to the then extant search and
seizure rule, that evidence compelled by a state grant of immunity could be
used by the Federal Government. But the legal foundation upon which that 4-
to-3 decision rested no longer stands. Evidence illegally seized by state officials
may not now be received in federal courts. In Elkins v. United States, 364 U.S.
206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, the Court held, over the dissent of the
writer of the Feldman decision, that 'evidence obtained by state officers during
a search which, if conducted by federal officers, would have violated the
defendant's immunity from unreasonable searches and seizures under the Fourth
Amendment is inadmissible over the defendant's timely objection in a federal
criminal trial.' 364 U.S., at 223, 80 S.Ct., at 1447. Thus, since the fundamental
assumption underlying Feldman is no longer valid, the constitutional question
there decided must now be regarded as an open one.
62 The relevant cases decided by this Court since Feldman fall into two categories.
Those involving a federal immunity statute exemplified by Adams v. Maryland,
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347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608—in which the Court suggested that
the Fifth Amendment bars use by the States of evidence obtained by the
Federal Government under the threat of contempt. And those involving a state
immunity statute—exemplified by Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct.
1302—where the Court, applying a rule today rejected, held the Fifth
Amendment inapplicable to the States.14
63 In Adams v. Maryland, supra, petitioner had testified before a United States
Senate Committee investigating crime, and his testimony had later been used to
convict him of a state crime. A federal statute at that time provided that no
testimony given by a witness in congressional inquiries 'shall be used as
evidence in any criminal proceeding against him in any court * * *.' 62 Stat.
833. The State questioned the application of the statute to petitioner's testimony
and the constitutionality of the statute if construed to apply to state courts. The
Court, in an opinion joined by seven members, made the following significantstatement: 'a witness does not need any statute to protect him from the use of
self-incriminating testimony he is compelled to give over his objection. The
Fifth Amendment takes care of that without a statute.' 347 U.S., at 181, 74
S.Ct., at 445.15 This statement suggests that any testimony elicited under threat
of contempt by a government to whom the constitutional privilege against self-
incrimination is applicable (at the time of that decision it was deemed
applicable only to the Federal Government) may not constitutionally be
admitted into evidence against him in any criminal trial conducted by agovernment to whom the privilege is also applicable. This statement, read in
light of today's decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, draws
into question the continuing authority of the statements to the contrary in
United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, and Feldman v. United
States, supra.16
64 Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, involved a state contempt
conviction for a witness' refusal to answer questions, under a grant of stateimmunity, on the ground that his answers might subject him to prosecution
under federal law. Petitioner claimed that 'the Fifth Amendment gives him the
privilege, which he can assert against either a State or the National
Government, against giving testimony that might tend to implicate him in a
violation' of federal law. Id., 357 U.S. at 374, 78 S.Ct., at 1305. The Court,
applying the rule then in existence, denied petitioner's claim and declared that:
65 'It is plain that the (Fifth Amendment) can no more be thought of as restrictingaction by the States than as restricting the conduct of private citizens. The sole
although deeply valuable—purpose of the Fifth Amendment privilege against
self-incrimination is the security of the individual against the exertion of the
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IV. CONCLUSIONS.
power of the Federal Government to compel incriminating testimony with a
view to enabling that same Government to convict a man out of his own
mouth.' Id., 357 U.S., at 380, 78 S.Ct., at 1308.
66 The Court has today rejected that rule, and with it, all the earlier cases resting
on that rule.
67 The foregoing makes it clear that there is no continuing legal vitality to, or
historical justification for, the rule that one jurisdiction within our federal
structure may compel a witness to give testimony which could be used to
convict him of a crime in another jurisdiction.
68
69 In light of the history, policies and purposes of the privilege against self-
incrimination, we now accept as correct the construction given the privilege by
the English courts17 and by Chief Justice Marshall and Justice Holmes. See
United States v. Saline Bank of Virginia, supra; Ballmann v. Fagin, supra. We
reject—as unsupported by history or policy—the deviation from that
construction only recently adopted by this Court in United States v. Murdock,
supra, and Feldman v. United States, supra. We hold that the constitutional
privilege against self-incrimination protects a state witness against
incrimination under federal as well as state law and a federal witness againstincrimination under state as well as federal law.
70 We must now decide what effect this holding has on existing state immunity
legislation. In Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, this Court
considered a federal statute which provided that no 'evidence obtained from a
party or witness by means of a judicial proceeding * * * shall be given in
evidence, or in any manner used against him * * * in any court of the United
States * * *.' Id., 142 U.S., at 560, 12 S.Ct., at 197. Notwithstanding this
statute, appellant, claiming his privilege against self-incrimination, refused to
answer certain questions before a federal grand jury. The Court said 'that
legislation cannot abridge a constitutional privilege, and that it cannot replace
or supply one, at least unless it is so broad as to have the same extent in scope
and effect.' Id., 142 U.S., at 585, 12 S.Ct., at 206. Applying this principle to the
facts of that case, the Court upheld appellant's refusal to answer on the ground
that the statute:
71 'could not, and would not, prevent the use of his testimony to search out other
testimony to be used in evidence against him or his property, in a crim nal
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proceeding in such court. * * *' id., 142 U.S., at 564, 12 S.Ct., at 198,
72 that it:
73 'could not prevent the obtaining and the use of witnesses and evidence which
should be attributable directly to the testimony he might give under
compulsion, and on which he might be convicted, when otherwise, and if he
had refused to answer, he could not possibly have been convicted. * * *' ibid.,
74 and that it:
75 'affords no protection against that use of compelled testimony which consists in
gaining therefrom a knowledge of the details of a crime, and of sources of
information which may supply other means of convicting the witness or party.'Id., 142 U.S., at 586, 12 S.Ct., at 206.
76 Applying the holding of that case to our holdings today that the privilege
against self-incrimination protects a state witness against federal prosecution,
supra, at 77—78, and that 'the same standards must determine whether (a
witness') silence in either a federal or state proceeding is justified,' Malloy v.
Hogan, 378 U.S., at 11, 84 S.Ct., at 1495, we hold the constitutional rule to be
that a state witness may not be compelled to give testimony which may beincriminating under federal law unless the compelled testimony and its fruits
cannot be used in any manner by federal officials in connection with a criminal
prosecution against him. We conclude, moreover, that in order to implement
this constitutional rule and accommodate the interests of the State and Federal
Governments in investigating and prosecuting crime, the Federal Government
must be prohibited from making any such use of compelled testimony and its
fruits.18 This exclusionary rule, while permitting the States to secure
information necessary for effective law enforcement, leaves the witness and theFederal Government in substantially the same position as if the witness had
claimed his privilege in the absence of a state grant of immunity.
77 It follows that petitioners here may now be compelled to answer the questions
propounded to them. At the time they refused to answer, however, petitioners
had a reasonable fear, based on this Court's decision in Feldman v. United
States, supra, that the federal authorities might use the answers against them in
connection with a federal prosecution. We have now overruled Feldman andheld that the Federal Government may make no such use of the answers.
Fairness dictates that petitioners should now be afforded an opportunity, in light
of this development, to answer the questions. Cf. Raley v. Ohio, 360 U.S. 423,
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79 S.Ct. 1257, 3 L.Ed.2d 1344. Accordingly, the judgment of the New Jersey
courts ordering petitioners to answer the questions may remain undisturbed. But
the judgment of contempt is vacated and the cause remanded to the New Jersey
Supreme Court for proceedings not inconsistent with this opinion.
78 It is so ordered.
79 Judgment sustained in part and vacated in part and cause remanded with
directions.
80 Mr. Justice BLACK concurs in the judgment and opinion of the Court for the
reasons stated in that opinion and for the reasons stated in Feldman v. United
States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408 (dissenting
opinion), as well as Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672,1683, 91 L.Ed. 1903 (dissenting opinion); Speiser v. Randall, 357 U.S. 513,
529, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460 (concurring opinion); Bartkus v.
Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 695, 3 L.Ed.2d 684 (dissenting
opinion); and Abbate v. United States, 359 U.S. 187, 201, 79 S.Ct. 666, 674, 3
L.Ed.2d 729 (dissenting opinion).
81 Mr. Justice HARLAN, whom Mr. Justice CLARK joins, concurring in the
judgment.
82 Unless I wholly misapprehend the Court's opinion, its holding that testimony
compelled in a state proceeding over a witness' claim that such testimony will
incriminate him may not be used against the witness in a federal criminal
prosecution rests on constitutional grounds. On that basis, the contrary
conclusion of Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed.
1408, is overruled.
83 I believe that the constitutional holding of Feldman was correct, and would not
overrule it. To the extent, however, that the decision in that case may have
rested also on a refusal to exercise this Court's 'supervisory power' over the
administration of justice in federal courts, I think that it can no longer be
considered good law, in light of this Court's subsequent decision in Elkins v.
United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. In Elkins, this
Court, exercising its supervisory power, did away with the 'silver platter'
doctrine and prohibited the use of evidence unconstitutionally seized by stateauthorities in a federal criminal trial involving the person suffering such a
seizure. I believe that a similar supervisory rule of exclusion should follow in a
case of the kind now before us, and solely on that basis concur in this judgment.
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I.
84 The Court's constitutional conclusions are thought by it to follow from what it
terms the 'policies' of the privilege against self-incrimination and a re-
examination of various cases in this Court, particularly in the context of early
English law. Almost entirely absent from the statement of 'policies' is any
reference to the particular problem of this case; at best, the statement suggeststhe set of values which are on one side of the issue. The discussion of precedent
is scarcely more helpful. It intertwines decisions of this Court with decisions in
English courts, which perhaps follow a different rule,1 and casts doubt for one
reason or another on every American case which does not accord with the
result now reached. When the skein is untangled, however, and the line of
cases is spread out, two facts clearly emerge:
85 (1) With two early and somewhat doubtful exceptions, this Court has
consistently rejected the proposition that the danger of incrimination in the
court of another jurisdiction is a sufficient basis for invoking a privilege against
self-incrimination;
86 (2) Without any exception, in every case involving an immunity statute in
which the Court has treated the question now before us, it has rejected the
present majority's views.
87 The first of the two exceptional cases is United States v. Saline Bank of
Virginia, 1 Pet. 100, 7 L.Ed. 69, decided in 1828; the entire opinion in that case
is quoted in the majority opinion, ante, pp. 59-60. It is not clear whether that
case has any bearing on the privilege against self-incrimination at all.2 The
second case is Ballmann v. Fagin, 200 U.S. 186, 26 S.Ct. 212, 50 L.Ed. 433,
decided in 1906. The statement that the appellant 'was exonerated from
disclosures which would have exposed him to the penalties of the state law,' id.,
200 U.S., at 195, 26 S.Ct., at 213, was at best an alternative holding and
probably not even that.3 Ballmann had based his refusal to testify before the
Grand Jury solely on the possibility of incrimination under state law, id., 200
U.S., at 193—194, 26 S.Ct., at 213. Nevertheless, before considering the effect
of state incrimination at all, the Court pointed out that the facts showed a
likelihood of incrimination under federal law. Id., 200 U.S., at 195, 26 S.Ct. at
213. The Court then proceeded to say:
88 'Not impossibly Ballmann took this aspect of the matter for granted, as one
which would be perceived by the court without his disagreeably emphasizing
his own fears. But he did cal attention to another less likely to be known. As we
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have said, he set forth that there were many proceedings on foot against him as
party to a 'bucket shop,' and so subject to the criminal law of the state in which
the grand jury was sitting. According to United States v. Saline Bank, 1 Pet.
100, 7 L.Ed. 69, he was exonerated from disclosures which would have
exposed him to the penalties of the state law. See Jack v. Kansas (decided this
term), 199 U.S. 372, 50 L.Ed. 234, 26 Sup.Ct.Rep. 73. One way or the other we
are of opinion that Ballmann could not be required to produce his cash book if he set up that it would tend to criminate him.' Id., 200 U.S., at 195—196, 26
S.Ct., at 213.
89 Since the Jack case which the Court cited immediately after referring to Saline
Bank had been decided just a few weeks before Ballmann and was contrary to
Saline Bank, it is plain that the Court was not approving and applying the latter
case. The explanation for the Court's inclusion of this ambiguous and
inconclusive discussion of state incrimination is surely the fact that Ballmannhad failed to set up the claim of fe eral incrimination on which the Court relied.
90 Neither of these two cases, therefore, 'squarely holds,' ante, p. 60; see ante, p.
65, that a danger of incrimination under state law relieves a witness from
testifying before federal authorities. More to the point, whatever force these
two cases provide for the majority's position is wholly vitiated by subsequent
cases, which are flatly contradictory to that position.
91 In Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234, decided in 1905,
the Court considered a Kansas immunity statute. The witness had refused to
testify on the ground that his testimony might incriminate him under federal
law. The Court upheld his commitment for contempt over his claim that the
immunity granted by the state statute was not 'broad enough,' id., 199 U.S., at
380, 26 S.Ct., at 75, and that his imprisonment therefore violated the
Fourteenth Amendment. The Court said:
92 'We think the legal immunity is in regard to a prosecution in the same
jurisdiction, and when that is fully given it is enough.' Id., 199 U.S., at 382, 26
S.Ct., at 76.
93 The present majority characterizes this statement as 'cryptic dictum,' ante, p. 65.
But, I submit, there is nothing cryptic about it. Nor is it dictum. The Court
assumed for purposes of that case that the Fourteenth Amendment required thata state statute 'give sufficient immunity from prosecution or punishment,' id.,
199 U.S., at 380, 26 S.Ct., at 75, and it is evident from the opinion that the
Court regarded the remoteness of a danger of prosecution in the courts of
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another jurisdiction, including the federal courts, as a basis for holding
generally, and not merely on the facts of the case before it, that a state
immunity statute need not protect against such danger. See id., 199 U.S., at 381
382, 26 S.Ct., at 75—76.
94 The next case is Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, decided one year
later, shortly after Ballmann. The Court there rejected the appellant's argumentthat the federal immunity statute to be valid had to confer immunity from
punishment under state law. It said:
95 'The further suggestion that the statute offers no immunity from prosecution in
the state courts was also fully considered in Brown v. Walker and held to be no
answer. The converse of this was also decided in Jack v. Kansas, 199 U.S. 372,
ante, 73, 26 Sup.Ct.Rep. 73, (50 L.Ed. 234), namely, that the fact that an
immunity granted to a witness under a state statute would not prevent a
prosecution of such witness for a violation of a Federal statute did not
invalidate such statute under the 14th Amendment. It was held both by this
court and by the supreme court of Kansas that the possibility that information
given by the witness might be used under the Federal act did not operate as a
reason for permitting the witness to refuse to answer, and that a danger so
unsubstantial and remote did not impair the legal immunity. Indeed, if the
argument were a sound one it might be carried still further and held to apply not
only to state prosecutions within the same jurisdiction, but to prosecutionsunder the criminal laws of other states to which the witness might have
subjected himself. The question has been fully considered in England, and the
conclusion reached (by the courts of that country) that the only danger to be
considered is one arising within the same jurisdiction and under the same
sovereignty. * * *' 201 U.S., at 68—69, 26 S.Ct., at 376.4
96 In Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S.Ct. 302, 71
L.Ed. 560, which did not involve an immunity statute, the Court found it
unnecessary to consider the question, extensively argued by the parties,
whether 'the Fifth Amendment guarantees immunity from self-incrimination
under state statutes * * *,' id., 273 U.S., at 113, 47 S.Ct., at 306; the Court
indicated that it did not necessarily regard Hale and Brown, supra, as
conclusive of that question, ibid. Cf. United States v. Murdock, 290 U.S. 389,
396, 54 S.Ct. 223, 226. Any doubts on this score, however, were settled in
1931, in United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63. The Court there
held unmistakably that an individual could not avoid testifying in federal proceedings on the ground that his testimony might incriminate him under state
law.
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97 'This court has held that immunity against state prosecution is not essential to
the validity of federal statutes declaring that a witness shall not be excused from
giving evidence on the ground that it will incriminate him, and also that the
lack of state power to give witnesses protection against federal prosecution does
not defeat a state immunity statute.
98 The principle established is that full and complete immunity against
prosecution by the government compelling the witness to answer is equivalent
to the protection furnished by the rule against compulsory self-incrimination.'
Id., 284 U.S., at 149, 52 S.Ct., at 65.
99 The Court has not until now deviated from that definitive ruling. In later
proceedings in the Murdock case, the Court said it was 'definitely settled that
one under examination in a federal tribunal could not refuse to answer onaccount of probable incrimination under state law.' 290 U.S. 389, 396, 54 S.Ct.
223, 226. The Court adhered to this view in Feldman, supra, where it
established an equivalent rule allowing the use in a federal court of testimony
given in a state court. The general principle was said to be one of 'separateness
in the operation of state and federal criminal laws and state and federal
immunity provisions.' 322 U.S., at 493—494, 64 S.Ct., at 1085.5
100 In Adams v. Maryland, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608, the Courtheld that a federal immunity statute,6 the language of which 'could be no
plainer,' id., 347 U.S., at 181, 74 S.Ct., at 444, prohibited the use in a state
criminal trial of testimony given before a Senate Committee. Quite obviously,
the remark in Adams that the Fifth Amendment protects a witness 'from the use
of self-incriminating testimony he is compelled to give over his objection,'
ibid., does not even remotely suggest 'that any testimony elicited under threat of
contempt by a government to whom the constitutional privilege against self-
incrimination is applicable * * * may not constitutionally be admitted intoevidence against him in any criminal trial conducted by a government to whom
the privilege is also applicable,' ante, p. 76.
101 In Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393, the
Court again upheld the validity of state immunity statutes against the charge
that they did not, as they could not, confer immunity from federal prosecution.
The Court adhered to its position in Knapp, supra, in 1959, in Mills v.
Louisiana, 360 U.S. 230, 79 S.Ct. 980, 3 L.Ed.2d 1193.
102 This, then, is the 'history' mustered by the Court in support of overruling the
sound constitutional doctrine lying at the core of Feldman.
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II.
103 Part I of this opinion shows, I believe, that the Court's analysis of prior cases
hardly furnishes an adequate basis for a new departure in constitutional law.
Even if the Court's analysis were sound, however, it would not support reversal
of the Feldman rule on constitutional grounds.
104If the Court were correct in asserting that the 'separate sovereignty' theory of
self-incrimination should be discarded, that would, as the Court says, lead to
the conclusion that 'a state witness (is protected) against incrimination under
federal as well as state law and a federal witness against incrimination under
state as well as federal law.' Ante, p. 78. However, dealing strictly with the
situation presented by this case, that conclusion does not in turn lead to a
constitutional rule that the testimony of a state witness (or evidence to which
his testimony leads) who is compelled to testify in state proceedings may not be
used against him in a federal prosecution. Protection which the Due Process
Clause affords against the States is quite obviously not any basis for a
constitutional rule regulating the conduct of federal authorities in federal
proceedings.
105 The Court avoids this problem by mixing together the Fifth Amendment and
the Fourteenth and talking about 'the constitutional privilege against self-
incrimination,' ante, pp. 77-78. Such an approach, which deals with
'constitutional' rights at large, unrelated either to particular provisions of the
Constitution or to relevant differences between the States and the Federal
Government warns of the dangers for our federalism to which the
'incorporation' theory of the Fourteenth Amendment leads. See my dissenting
opinion in Malloy v. Hogan, 378 U.S. 14, 84 S.Ct. 1497.
106 The Court's reasons for overruling Feldman thus rest on an entirely new
conception of the Fifth Amendment, namely that it applies to federal use of
state-compelled incriminating testimony. The opinion, however, contains
nothing at all to contradict the traditional, well-understood conception of the
Fifth Amendment, to which, therefore, I continue to adhere:
107 'The sole—although deeply valuable—purpose of the Fifth Amendment
privilege against self-incrimination is the security of the individual gainst the
exertion of the power of the Federal Government to compel incriminatingtestimony with a view to enabling that same Government to convict a man out
of his own mouth.' Knapp v. Schweitzer, supra, 357 U.S., at 380, 78 S.Ct., at
1308.
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III.
108 It is no service to our constitutional liberties to encumber the particular
provisions which safeguard them with a gloss for which neither the text nor
history provides any support.
109 Accordingly, I cannot accept the majority's conclusion that a rule prohibiting
federal authorities from using in aid of a federal prosecution incriminating
testimony compelled in state proceedings is constitutionally required.
110 I would, however, adopt such a rule in the exercise of our supervisory power
over the administration of federal criminal justice. See McNabb v. United
States, 318 U.S. 332, 340—341, 63 S.Ct. 608, 612—613, 87 L.Ed. 819. The
rule seems to me to follow from the Court's rejection, in the exercise of its
supervisory power, of the 'silver platter' doctrine as applied to the use in federalcourts of evidence unconstitutionally seized by state officers. Elkins v. United
States, 364 U.S. 206, 80 S.Ct. 1437.
111 Since I reject the majority's argument that the 'separate sovereignty' theory of
self-incrimination is historically unfounded, I do not base my conclusion on the
holding in Malloy, ante, that due process prohibits a State from compelling a
witness to testify. My conclusion is based rather on the ground that such a rule
is protective of the values which the federal privilege against self-incriminationexpresses, without in any way interfering with the independent action of the
States and the Federal Government in their respective spheres. Increasing
interaction between the State and Federal Governments speaks strongly against
permitting federal officials to make prosecutorial use of testimony which a State
has compelled when that same testimony could not constitutionally have been
compelled by the Federal Government and then used against the witness.
Prohibiting such use in no way limits federal power to investigate and prosecute
for federal crime, which power will be as full after a State has completed aninvestigation as before.7 This adjustment between state investigations of local
crime and federal prosecutions for federal crime seems particularly desirable in
view of the increasing, productive cooperation between federal and state
authorities in the prevention of crime. By insulating intergovernmental
cooperation from the danger of any encroachment on the federal privilege
against self-incrimination, such a rule in the long run will probably make joint
programs for crime prevention more effective.8
112 On this basis, I concur in the judgment of the Court.
113 Mr. Justice WHITE, with whom Mr. Justice STEWART oins, concurrin .
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I.
114 The Court holds that the constitutional privilege against self incrimination is
nullified 'when a witness 'can be whipsawed into incriminating himself under
both state and federal law even though' the constitutional privilege against self-
incrimination is applicable to each.' Ante, p. 55. Whether viewed as an exercise
of this Court's supervisory power over the conduct of federal law enforcement
officials or a constitutional rule necessary for meaningful enforcement of the
privilege, this holding requires that compelled incriminating testimony given in
a state proceeding not be used in any manner by federal officials in connection
with a federal criminal prosecution. Since these petitioners declined to answer
in the belief that their very testimony as well as evidence derived from it could
be used by federal authorities in a criminal prosecution against them, they
should be afforded an opportunity to purge themselves of the civil contempt
convictions by answering the questions. Cf. Raley v. Ohio, 360 U.S. 423, 79
S.Ct. 1257, 3 L.Ed.2d 1344.
115 In reaching its result the Court does not accept the far-reaching and in my view
wholly unnecessary constitutional principle that the privilege requires not only
complete protection against any use of compelled testimony in any manner in
other jurisdictions but also absolute immunity in these jurisdictions from any
prosecution pertaining to any of the testimony given. The rule which the Court
does not adopt finds only illusory support in a dictum of this Court and, as I
shall show, affords no more protection against compelled incrimination thandoes the rule forbidding federal officials access to statements made in exchange
for a grant of state immunity. But such a rule would invalidate the immunity
statutes of the 50 States since the States are without authority to confer
immunity from federal prosecutions, and would thereby cut deeply and
significantly into traditional and important areas of state authority and
responsibility in our federal system. It would not only require widespread
federal immunization from prosecution in federal investigatory proceedings of
persons who violate state criminal laws, regardless of the wishes or needs of local law enforcement officials, but would also deny the States the power to
obtain information necessary for state law enforcement and state legislation.
That rule, read in conjunction with the holding in Malloy v. Hogan, 378 U.S. 1,
84 S.Ct. 1489 that an assertion of the privilege is all but conclusive, would
mean that testimony in state investigatory proceedings, and in trials also, is on a
voluntary basis only. The Federal Government would become the only law
enforcement agency with effective power to compel testimony in exchange for
immunity from prosecution under federal and state law. These considerationswarrant some elaboration.
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116 Among the necessary and most important of the powers of the States as well as
the Federal Government to assure the effective functioning of government in an
ordered society is the broad power to compel residents to testify in court or
before grand juries or agencies. See Blair v. United States, 250 U.S. 273, 39
S.Ct. 468, 63 L.Ed. 979.1 Such testimony constitutes one of the Government's
primary sources of information. The privilege against self-incrimination,
safeguarding a complex of significant values, represents a broad exception togovernmental power to compel the testimony of the citizenry. The privilege can
be claimed in any proceeding, be it criminal or civil, administrative or judicial,
investigatory or adjudicatory. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct.
16, 17, 69 L.Ed. 158; United States v. Saline Bank, 1 Pet. 100, 7 L.Ed. 69, and
it protects any disclosures which the witness may reasonably apprehend could
be used in a criminal prosecution or which could lead to other evidence that
might be so used. Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed.
1198; Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118.Because of the importance of testimony, especially in the discovery of ertain
crimes for which evidence would not otherwise be available, and the breadth of
the privilege, Congress has enacted over 40 immunity statutes and every State,
without exception, has one or more immunity acts pertaining to certain offenses
or legislative investigations.2 Such statutes have for more than a century been
resorted to for the investigation of many offenses, chiefly those whose proof
and punishment were otherwise impracticable, such as political bribery,
extortion, gambling, consumer frauds, liquor violations, commercial larceny,and various forms of racketeering. This Court, in dealing with federal immunity
acts, has on numerous occasions characterized such statutes as absolutely
essential to the enforcement of various federal regulatory acts. In Brown v.
Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, the case in which the Court
first upheld a congressional immunity act over objection that the witness' right
to remain silent was inviolate, the Court said: '(If) witnesses standing in
Brown's position were at liberty to set up an immunity from testifying, the
enforcement of the interstate commerce law or other analogous acts, wherein it
is for the interest of both parties to conceal their misdoings, would become
impossible.' 161 U.S. 591, at 610, 16 S.Ct. 644, at 652. Again in Hale v.
Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, the Court noted the highly
significant role played by immunity acts in the enforcement of federal
legislation:
117 'As the combination or conspiracies provided against by the Sherman antitrust
act can ordinarily be proved only by the testimony of parties thereto, in the person of their agents or employees, the privilege claimed would practically
nullify the whole act of Congress. Of what use would it be for the legislature to
declare these combinations unlawful if the judicial power may close the door of
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access to every available source of information upon the subject?' Id., 201 U.S.
at 70, 26 S.Ct., at 377.
118 And only recently the Court declared that immunity statutes have 'become part
of our constitutional fabric * * * included '* * * in virtually all of the major
regulatory enactments of the Federal Government," and 'the States * * * have
passed numerous statutes compelling testimony in exchange for immunity inthe form either of complete amnesty or of prohibition of the use of the
compelled testimony.' Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct.
497, 506, 100 L.Ed. 511.
119 These state statutes play at least an equally important role in compelling
testimony necessary for enforcement of state criminal laws. After all, the States
still bear primary responsibility in this country for the administration of the
criminal law; most crimes, particularly those for which immunity acts have
proved most useful and necessary, are matters of local concern; federal
preemption of areas of crime control traditionally reserved to the States has
been relatively unknown and this area has been said to be at the core of the
continuing viability of the States in our federal system. See Abbate v. United
States, 359 U.S. 187, 195, 79 S.Ct. 666, 671, 3 L.Ed.2d 729; Screws v. United
States, 325 U.S. 91, 109, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495; United States v.
Cruikshank, 92 U.S. 542, 553 554, 23 L.Ed. 588; Unite States v. Ah Hung, 243
F. 762 (D.C.E.D.N.Y.). Cf. 18 U.S.C. § 5001, 18 U.S.C. § 659.3
120 Whenever access to important testimony is barred by possible state prosecution,
the State can, at its option, remove the impediment by a grant of immunity; but
if the witness is faced with prosecution by the Federal Government, the State is
wholly powerless to extend immunity from prosecution under federal law in
order to compel the testimony. Almost invariably answers incriminating under
state law can be claimed to be incriminating under federal law. Given the
extensive sweep of a host of federal statutes, such as the income tax laws,
securities regulation, laws regulating use of the mails and other communication
media for an illegal purpose, and regulating fraudulent trade practices, and
given the very limited discretion, if any, in the trial judge to scrutinize the
witness' claim of privilege. Malloy v. Hogan, supra, investigations conducted
by the State into matters of corruption and misconduct will obviously be
thwarted if immunity from prosecution under federal law was a constitutionally
required condition to testimonial compulsion in state proceedings. Wherever the
witness, for reasons known only to him, wished not to respond to orderlyinquiry, the flow of information to the State would be wholly impeded. Every
witness would be free to block vitally important state proceedings.
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121 It is not without significance that there were two ostensibly inconsistent lines of
cases in this Court regarding the external reach of the privileges in respect to
the laws of another jurisdiction. In the cases involving refusals to answer
questions in a federal grand jury or discovery proceedings on the ground of
incrimination under state law, absent any immunity statute, the Court suggested
that the Fifth Amendment privilege protected such answers, United States v.
Saline Bank, 1 Pet. 100, 7 L.Ed. 69; Ballmann v. Fagin, 200 U.S. 186, 26 S.Ct.
212, 50 L.Ed. 433, while in the cases involving refusals to answer after
immunity was conferred, the Court indicated that immunity in regard to a
prosecution in the jurisdiction conducting the inquiry satisfied the privilege.
Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644; Jack v. Kansas, 199 U.S. 372, 26
S.Ct. 73, 50 L.Ed. 234; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370. Cf. United
States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210. The decision in
Ballmann that a witness in a federal grand jury proceeding could not be
compelled to make disclosures incriminating under very similar federal andstate criminal statutes was announced by members of the same Court and
within a very short time of the decisions in Jack and Hale, holding that
immunity nder the laws of one sovereign was sufficient. The basis for these
latter holdings, as well as Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2
L.Ed.2d 1393, upholding a state contempt conviction for a refusal to answer
after a grant of state immunity, was not a niggardly view of the privilege against
self-incrimination but 'the historic distribution of power as between Nation and
States in our federal system.' 357 U.S. 371, at 375, 78 S.Ct. 1302, at 1305. Asthe concurring and dissenting members of the Court in Knapp pointed out, the
dilemma posed to our federal system by federally incriminating testimony
compelled in a state proceeding was not really necessary but for the prior
decision in Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed.
1408, which upheld the Federal Government's use of incriminatory testimony
compelled in a state proceeding. Although Feldman was questioned, no one
suggested in Knapp that the solution to the problem lay in forbidding the State
to ask questions incriminating under federal law.
122 To answer that the underlying policy of the privilege subordinates the law
enforcement function to the privilege of an individual will not do. For where
there is only one government involved, be it state or federal, not only is the
danger of prosecution more imminent and indeed the likely purpose of the
investigation to facilitate prosecution and conviction, but that authority has the
choice of exchanging immunity for the needed testimony. To transform
possible federal prosecution into a source of absolute protected silence on the part of a state witness would leave no such choice to the States. Only the
Federal Government would retain such an option.
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II.
123 Nor will it do to say that the Congress could reinstate state power by
authorizing state officials to confer absolute immunity from federal
prosecutions. Congress has established highly complicated procedures,
requiring the approval of the Attorney General, before a limited group of
federal officials may grant immunity from federal prosecutions. E.g., 18 U.S.C.
§ 3486,4 18 U.S.C. § 1406. The decision to grant immunity is based upon the
importance of the testimony to federal law enforcement interest, a matter within
the competence of federal officials to assay. These procedures would create
insurmountable obstacles if the requests for approval were to come from
innumerable local officials of the 50 States. Obviously federal officials could
not properly evaluate the extent of the State's need for the testimony on a case-
by-case basis. Further, the scope of the immunity conferred wholly depends on
the testimony given, a matter of considerable difficulty to determine after, no
less than before, the question is answered, the time when federal approval
would be necessary, Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57L.Ed. 450; Lumber Products Ass'n v. United States, 144 F.2d 546 (C.A.9th
Cir.), and a matter whose determination requires intimate familiarity with both
the nature and details of the investigation and the background of the witness.
Finally, it is very doubtful that Congress would, if it had the power to, authorize
one State to confer immunity on persons subject to prosecution under the
criminal laws of another State.
124 Neither the conflict between state and federal interests nor the consequent
enthronement of federal agencies as the only law enforcement authorities with
effective power to compel testimony is necessary to give full effect to a
privilege against self-incrimination whose external reach embraces federal as
well as state law. The approach need not and, in light of the above
considerations, should not be in terms of the State's power to compel the
testimony rather than the use to which such testimony can be put. It isunquestioned that an immunity statute, to be valid, must be coextensive with the
privilege which it displaces, but it need not be broader. Counselman v.
Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Brown v. Walker, 161
U.S. 591, 16 S.Ct. 644; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370. If the
compelled incriminating testimony in a state proceeding cannot be put to any
use whatsoever by federal officials, quite obviously the witness' privilege
against self-incrimination is not infringed. For the privilege does not convey an
absolute right to remain silent. It protects a witness from being compelled tofurnish evidence that could result in his being subjected to a criminal sanction,
Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814; Mason v. United States,
244 U.S. 362, 37 S.Ct. 621, if, but only if, after the disclosure the witness will
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be in greater danger of prosecution and conviction. Rogers v. United States,
340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; United States v. Gernie, 252 F.2d
664 (C.A.2d Cir.). When federal officials are barred not only from introducing
the testimony into evidence in a federal prosecution but also from introducing
any evidence derived from such testimony, the disclosure has in no way
contributed to the danger or likelihood of a federal prosecution. This approach
secures the protections of the privilege against self-incrimination for alldefendants without impairing local law-enforcement and investigatory
activities. It, of course, forecloses the use of state-compelled testimony in any
manner by federal prosecutors, but the privilege in my view commands that the
Federal Government should not have the benefit of compelled incriminatory
testimony. Both the Federal Government and the witness are in exactly the
same position as if the witness had remained silent.5 And state immunity
statutes remain constitutional and state law enforcement agencies viable.
125 It is argued that a rule only forbidding use of compelled testimony does not
afford absolute protection against the possibility of a federal prosecution based
in part on the compelled testimony. It is said that absent any deliberate attempt
by federal officers to utilize the testimony the very identification and testimony
of the witness in the state proceedings, perhaps in the newspapers, may increase
the possibility of a federal p osecution and alternatively that the defendant may
not be able to prove that evidence was intentionally and unlawfully derived
from his compelled testimony. These are fanciful considerations, hardlysufficient as a basis for a constitutional adjudication working a substantial
reallocation of power between state and national governments.
126 In the absence of any misconduct or collusion by federal officers, whatever
increase there is, if any, in the likelihood of federal prosecution following the
witness' appearance before a state grand jury or agency results from the
inferences drawn from the invocation of the privilege to specific questions on
the ground that they are incriminating under federal law and not from the factthe witness has testified in what is frequently an in camera proceeding under a
grant of immunity. Whether in camera or not, the testimony itself is hardly
reported in newspapers and the transcripts and records of the state proceedings
are not part of the files of the Federal Government. Access and use require
misconduct and collusion, a matter quite susceptible of proof. But this is
quibbling, since the very fact that a witness is called in a state crime
investigation is likely to be based upon knowledge, or at least a suspicion based
on some information, that the witness is implicated in illegal activities, whichknowledge and information are probably available to federal authorities.
127 The danger that a defendant may not be able to establish that other evidence
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was obtained through the unlawful use by federal officials of inadmissible
compelled testimony is insubstantial. The privilege protects against real
dangers, not remote and speculative possibilities. Brown v. Walker, 161 U.S.
591, 599—600, 16 S.Ct. 644, 647—648; Heike v. United States, 227 U.S. 131,
33 S.Ct. 226; Mason v. United States, 244 U.S. 362, 37 S.Ct. 621. First, one
might just as well argue that the Constitution requires absolute immunity from
prosecution wherever the Government has obtained an inadmissible confessionor other evidence through an illegal search and seizure, an illegal wiretap,
illegal detention, and coercion. A coerced confession is as revealing of leads as
testimony given in exchange for immunity and indeed is excluded in part
because it is compelled incrimination in violation of the privilege. Malloy v.
Hogan, 378 U.S., at 7—8, 84 S.Ct., at 1493—1494; Spano v. New York, 360
U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; Bram v. United States, 168 U.S. 532,
18 S.Ct. 183, 42 L.Ed. 568. In all these situations a defendant must establish
that testimony or other evidence is a fruit of the unlawfully obtained evidence, Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Wilson v.
United States, 218 F.2d 754 (C.A.10th Cir.); Lotto v. United States, 157 F.2d
623 (C.A.8th Cir.), which proposition would seem a fortiori true where the
Government has not engaged in illegal or unconstitutional conduct and where
the inadmissible testimony is obtained by a government other than the one
bringing the prosecution and for a purpose unrelated to the prosecution.
Second, there are no real proof problems in this situation. As in the analogous
search and seizure and wiretap cases—where the burden of proof is on theGovernment once the defendant establishes the unlawful search or wiretap,
United States v. Coplon, 185 F.2d 629 (C.A.2d Cir.); United States v.
Goldstein, 120 F.2d 485, 48 (C.A.2d Cir.), aff'd, 316 U.S. 114, 62 S.Ct. 1000,
86 L.Ed. 1312—once a defendant demonstrates that he has testified in a state
proceeding in exchange for immunity to matters related to the federal
prosecution, the Government can be put to show that its evidence is not tainted
by establishing that it had an independent, legitimate source for the disputed
evidence. Since the Government has the relevant information within its control,
valid prosecutions need not be sacrified and infringement of the privilege
through use of compelled testimony, direct or indirect, need not be tolerated. It
is carrying a premise of perjury an judicial incompetence to excess to believe
that this procedure poses any hazards to the rights of an accused. Third, greater
requirements or difficulties of proof by a defendant inhere in the rule of
absolute immunity. When a witness testifies under the auspices of an immunity
act, the immunity he gets does not secure him from indictment or conviction.
Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821. The witness
must plead and prove, as an affirmative defense, that he has received immunity
and that the instant prosecution is on account of a matter testified to in
exchange for immunity, Heike v. United States, 227 U.S. 131